IN THE CASE OF: BOARD DATE: 17 August 2022 DOCKET NUMBER: AR20220001593 APPLICANT REQUESTS: An upgrade of his dishonorable discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, his court-martial and dishonorable discharge were severe and unwarranted for an offense that could have been resolved at a lower level. At the time of his offense, he was young and having mental health problems, which caused him to make a bad decision that he would not have made under normal circumstances. 3. The applicant's service records show: a. On 16 September 1968, the applicant voluntarily applied for induction into the Armed Forces of the U.S. On 19 November 1968, he was inducted into the Army of the U.S., for a 2-year service obligation, at the age of 21. b. The applicant maintained excellent conduct and efficiency ratings throughout his initial training. Upon completion of his training and the award of military occupational specialty (MOS) 57E (Laundry Bath & Impregnation Specialist), he was assigned to the U.S. Army Pacific (USARPAC), in the Republic of Vietnam (RVN), on 10 May 1969. His highest grade held was Specialist Four (SP4) Temporary. c. His conduct and efficiency ratings were excellent while serving in the RVN from 11 May 1969 thru 24 July 1969 when he was moved to another location. d. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 8 August 1969, for the following offenses: * two specifications of failing to go at the time prescribed to his appointed place of duty, on or about 8 August 1969 * willfully disobeying a lawful order from his superior noncommissioned officer, on or about 8 August 1969 * his punishment included a suspended reduction to pay grade E-3 e. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 2 September 1969, for the following offenses: * violating a lawful regulation, by being in an authorized area, on or about 28 August 1969 * failing to go at the time prescribed to his appointed place of duty, on or about 28 August 1969 * his punishment included reduction to pay grade E-2 f. Before a general court-martial on 15 November 1969, at Long Binh, RVN, the applicant was found guilty of the following specifications, on or about 26 September 1969: * assaulting Staff Sergeant by striking him on the head and body with a bunk adapter likely to produce grievous bodily harm * assaulting Private First Class by striking him on the head, back, and sides with a bunk adapter likely to produce grievous bodily harm * assaulting Sergeant (SGT) by striking him on the head with a bunk adapter likely to produce grievous bodily harm * assaulting Specialist by striking him on the head with a bunk adapter likely to produce grievous bodily harm, a skull fracture * wrongfully communicating a threat to kill SGT g. His sentence included forfeiture of all pay and allowances, confinement at hard labor for three years, and separation from service with a dishonorable discharge. He departed the RVN on 27 September 1969. On 27 November 1969, only so much his sentence was approved and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. h. On 22 January 1970, the U.S. Army Court of Military Review affirmed the findings and sentence. i. On 5 February 1970, the applicant stated in a prisoner's admission summary, that he committed the offenses due to racial conflicts to help two brothers that were locked up and needed help. The form further shows the psychiatrist noted some tension was evidenced during the interview. No psychotic process was detected. The applicant's insight was superficial, and his judgment was easily subjected to distortions arising from emotional factors. At present no psychiatric indications for or against parole, although when eligible it could be an appropriate measure. j. General Court-Martial Order Number 242, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 6 March 1970, noted that the applicant's sentence had finally been affirmed and ordered the remaining portion of his sentence duly executed. k. On 30 March 1970, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Paragraph 11-1. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his service was characterized as dishonorable and he was credited with completing 10 months and 8 days of active service, with 4 months and 17 days of foreign service in USARPAC. He had 185 days of lost time from 27 September 1969 to 30 March 1970. It does not show he was awarded or authorized any awards or badges. l. He was granted parole on 18 September 1970, with a release date of 14 May 1971. m. On 24 September 1970, the applicant underwent a separation examination, wherein he noted he was in good health. 4. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The applicant contends, in effect, that his general court-martial and dishonorable discharge was too harsh for his offenses. He also contends he was suffering from mental health issues at the time of his offenses and that his behavior was out of character. His service records show the offenses for which he was court-martialed occurred in the RVN on 26 September 1969. b. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the ABCMR is not empowered to set aside a conviction. Rather, the law only authorizes the Board to change the severity of the sentence imposed in the court-martial process, and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 6. Army Regulation 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. It also establishes standardized policy for preparing and distributing the DD Form 214. The instructions in the current version of the regulation require an entry documenting the deployed service of active-duty Soldiers in the remarks section of the DD Form 214. The version of the regulation in effect at the time of the applicant's separation did not required this entry; however, it did indicate that the major overseas command in which the last period of foreign service was performed would be entered in Item 22c (Foreign and/or Sea Service) 7. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: While the applicant was diagnosed with an Immature Personality, this is a description of the applicant’s understanding and approach to life rather than a psychiatric illness. Documentation is void of a psychiatric disorder in- or post-service. Accordingly, there is no medical mitigation. a. The applicant was discharged on 30 March 1970 under AR 635-200, SPN 292, Conviction by Court Martial, with a Dishonorable characterization. The applicant served in Vietnam from 10 May 1969 until his incarceration on 27 September 1969. The applicant was discharged after being found guilty of assaulting a SSG, SGT, SPC and PVT on the head and body with an object likely to produce grievous bodily harm and wrongfully communicating a threat to kill the SGT. The applicant is requesting an upgrade to General asserting the discharge was severe and unwarranted and he was having “mental health problems which caused him to make a bad decision…” b. Due to the period of service, there are no active-duty electronic medical records. Hard copy medical records were unavailable for review. c. The electronic packet contained a February 1970 Prisoner Assessment. The applicant indicated the assault related to racial conflicts. The applicant noted pre- enlistment arrests for fighting, disorderly conduct, resisting arrest, speeding, drinking and reckless driving, and driving with a revoked license. The applicant reported a history of depression related to his wife’s infidelity and difficulty controlling his temper. At the time of the assessment, he admitted to depression and worry related to his circumstances. The provider noted Command reported the applicant was proud to the point of arrogance and constantly at sick call to avoid work. Command denied any concerns for substances or other indicators of psychiatric illness, e.g., hygiene concerns. The provider referenced a January 1970 neuropsychiatric exam which concluded any difficulties were related to the applicant’s personality structure rather than a psychiatric illness. Both assessments contained normal Mental Status Exams. The provider diagnosed Immature Personality noting the applicant had a profile with a S1, there were no psychiatric limitations. d. A September 1970 exit physical was void of behavioral health symptoms, conditions, or treatment per provider and applicant. e. The applicant is not service connected and VA records are void of contact. f. The applicant did not submit any medical records for review. g. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? (a) NO (2) Did the condition exist or experience occur during military service? (a) NA (3) Does the condition or experience actually excuse or mitigate the discharge? (a) NA (4) Does the condition or experience outweigh the discharge? (a) NA BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding no documented psychiatric diagnosis to consider with respect to mitigation of his misconduct. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant no provided post-service character letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): 1.. Army Regulation 600-8-22 (Military Awards) states the following: a. A bronze service star will be awarded, for wear on the Vietnam Service Medal, for participation in each campaign. Recognized campaigns for Vietnam included: * Tet 69 Counteroffensive, 1969 (23 February 1969 to 8 June 1969) * Vietnam Summer – Fall 1969 (9 June 1969 to 31 October 1969) b. The National Defense Service Medal was awarded for honorable active service during the period 1 January 1961 through 14 August 1974. 2. Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for the overseas service bar. It states a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in AR 670-1 or appropriate Department of the Army message. There are special provisions regarding authorization for the overseas service bar for service in a hostile fire zone and for combining service to calculate award of the bars. For Vietnam service, one overseas service bar was authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973. Both the month of arrival and the month of departure from Vietnam were counted as whole months for credit toward the overseas service bar. 3. Department of the Army Pamphlet (DA PAM) 672-3 (Unit Citation and Campaign Participation Credit Register) shows DAGO Number 8, dated 1974 awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all units that served in Vietnam. Based on the foregoing, amend the applicant's DD Form 214, ending 30 March 1970, by adding the following entries: * "REPUBLIC OF VIETNAM SERVICE FROM 10 MAY 1969 THROUGH 27 SEPTEMBER 1969" * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11, paragraph 11-1, states an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. b. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001593 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1